The Meaning of Fair Use

Frazier, Kenneth, Computers in Libraries

The meaning of the term fair use is more readily found by understanding the uses of knowledge than by contemplating the limits of legal copying. This is not a new interpretation of its meaning; it is deeply embedded in the traditions and literature concerning fair use. Anyone who reads the history of the fair use doctrine will encounter the essential concept of a public domain of knowledge.

I believe that I am writing this not because of my legal expertise, but because I have had the opportunity to prepare the draft statement on copyright principles for the Association of Research Libraries that you will review in the future. It was a wonderful experience to read and compile information in this very rich subject area. The draft begins with a very brief quote from Feist v. The Rural Telephone Services attributed to Sandra Day O'Connor. It's a statement of remarkable force and clarity. I am going to begin by reading it to you in its full context, with only slight paraphrasing.

Intellectual Property Law

"It may seem unfair," Justice O'Connor wrote, "that much of the fruit of a creator's labor may be used by others without compensation. But this is not an unforeseen byproduct of our intellectual property system. It is the system's very essence. Intellectual property law, assures the authors the right to their original expression, but encourages others to build freely upon it. This result is neither unfair, nor unfortunate. It is the means by which intellectual property law advances through the progress of science and art. We give authors and publishers certain rights when, in exchange, we get a richer public domain."

Now, as always, when we librarians talk about intellectual property rights, it is important for us to affirm our genuine support for the exclusive rights of copyright holders. Defending the rights of authors and publishers in an intellectual property system is essential to its functioning. It provides an incentive for investment; it protects entitlement to fair compensation for authors and artists; and it creates commerce that supports further opportunities for creativity and discovery.

Electronic Infringement

Like publishers, we are concerned that in an emerging electronic information environment, it is much easier to infringe on the copyright owner's exclusive rights to make copies. Technology is fueling changes in our ability to make and distribute copies at a tremendous velocity. However, many crimes have become technologically easier, including genocide and murder. The 1976 revision of the copyright act was expressly intended by Congress to apply to all types of information. Blatant copyright infringement is no less illegal than it ever was. It certainly does not follow that if copying is easier to accomplish, then legal (fair use) copying must be made illegal.

While we should expect publishers to be more vigilant about protecting intellectual property rights in an electronic environment, we also need to be concerned that we maintain an enforceable copyright law that fulfills its constitutional purpose of promoting progress in science and the useful arts.

Texaco Copyright Case

Interestingly, one of the most important copyright cases of our time, the Texaco case, is not at all concerned with the new technologies of information transfer but with the use of photocopy machines by and for researchrs. Many of you know the background of this case: that articles were copied by the researchers at Texaco, that the Texaco library bought institutional journal subscriptions -- multiple institutional subscriptions -- and that Texaco's profit motive in making copies, or allowing copies to be made, was not profit from the distribution of these copyrighted works but rather the profit they achieved through use of the knowledge itself. Nonetheless, the Federal District Court ruled against Texaco's fair use claims.

Yes, we also know that the Texaco library supported the activities of 500 researchers. …

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